Ms Sharma Electronics And Ors vs THE KALUPUR COMMERCIAL CO OP BANK LTD on 21 October 2024

**ORDER**

1. 1. Amendment application Ex.A/5 and Service purshis Ex.A/7 filed by the Applicants and Vakalatnama Ex.R/6 filed by the Respondent on 16.10.2024 are taken on record.

2. 2. After hearing arguments of Id. Counsel for both the parties on the application for Condonation of delay filed by the Applicants, I dispose of the same by this order.

3. 3. Ld. Counsel for the Applicants submitted that the Applicants have filed the accompanying Securitization Application u/s 17 of the SARFAESI Act inter alia praying for quashing and setting aside the measures initiated by the Respondent on various grounds as mentioned in the memo of Securitization Application.

4. 4. Ld. Counsel for the Applicant submitted that there is a delay of 16 days in preferring the above SA, from the date of issuance of notice for taking

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physical possession of the property in question on 07.07.2024 by Court Commissioner in compliance of order dated 07.06.2024 passed by Id. Addl. Chief Judicial Magistrate, Surat u/s.14 of the Act. It is submitted that on 07.07.2024, Court Commissioner visited the premises and took the physical possession of the properties in question and handed over the same to the Respondent Bank and affixed the possession notice on the conspicuous part of the properties in question. It is submitted that the Applicants are not stationed at Ahmedabad and upon knowing the said facts, Applicants approached the Advocate for advice and also applied for certified copy of the order passed u/s.14 of the Act and record of application of the proceedings held before the Id. ACJM, Surat, which were received by the Applicants on 29.07.2024.

1. 5. It is submitted that some time was consumed by the Applicants in gathering funds and in arranging for court fees and litigation expenses and further, also due to heavy rains, Applicant no.4 being old aged and not keeping good health and suffering from various age related health problems could not travel and as such, some delay has occurred in filing the present SA. Further, it is submitted that there is no deliberate delay in filing the present SA and that the delay occurred in taking legal advice and collecting documents from the office of Id.ACJM, Surat. It is further submitted that the issuance of sale notice dated 11.09.2024 by the Respondent Bank, scheduling auction of properties in question on 22.10.2024, gives rise to fresh cause of action to the Applicants to file the present SA. It is further submitted that the delay caused in filing the present SA is not intentional and is bonafide and they will suffer irreparable loss, if delay is not condoned. As such, the delay caused may be condoned in the interest of justice.

2. 6. Ld. Counsel for the Respondent submitted that he has gone through the application for condonation of delay so filed by the Applicants and further submitted that, this Tribunal, may pass appropriate order on the said application so filed by the Applicants.

3. 7. I have heard Ld. Counsel for both the parties and gone through the record of the case.

4. 8. It appears from perusal of pleadings and submissions made by the Ld. Counsel for both the parties that the application for condonation of delay has not seriously been disputed by the Respondent that the possession notice dated 07.07.2024 issued by the Respondent Bank for taking physical possession of properties in question was affixed on the 3M.A. No.42 of 2024

conspicuous part of the disputed property on 07.07.2024, pursuant to which, the Applicants applied for the certified copy of order passed u/s. 14 of the Act, which was received by them on 29.07.2024 and thereafter, sometime was also consumed in taking legal opinion. Further, during the pendency of present Delay condonation application, Respondent Bank has also issued sale notice dated 11.09.2024, scheduling the auction of the properties in question on 22.10.2024.

1. 9. In order to appreciate the aforesaid submissions, it is pertinent to note that the Hon'ble High Court of Gujarat in the matter of *Manglesh Champaklal Gandhi in LPA No.224/2020*, has held that this Tribunal has discretion to condone the delay in filing application u/s.17 of SARFAESI Act, 2002 beyond the period of 45 days, as provisions of Section 5 of Limitation Act would apply and such discretion has to be exercised taking into consideration the facts and circumstances on the aspect of sufficient cause as to whether grounds mentioned therein are sufficient to condone the delay or not. The reasons as explained by Applicants in their application for Condonation of Delay appears to be sufficient in the facts and circumstances of the above case and thus, the application for Condonation of delay deserves to be allowed in the interest of justice. Moreover, no prejudice of any nature will be caused to the Respondent as ultimately the matter would be decided on merits after hearing both the parties.

2. 10. In view of the aforesaid discussion, the present application for Condonation of delay is allowed and delay, if any, in filing SA is hereby condoned.

3. 11. Registry is hereby directed to register and number the accompanying SA.

4. 12. List the matter for hearing on 22.10.2024 before this Tribunal.

(ANIL KUMAR GUPTA) PRESIDING OFFICER, I/c. DRT-II, AHMEDABAD 21.10.2024